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Proof of Operation Necessary to Convict for DWI, Leaving the Scene

In order for a prosecutor to convict someone of DWI, or any moving violation for that matter, the first thing he or she must prove is the essential element of operation. In other words, the State must prove, beyond a reasonable doubt, that a defendant accused of DWI and related offenses actually operated a motor vehicle on the roadways of the State of New Jersey. Failure to prove operation will result in an acquittal and dismissal of the charges.

Kelly and Nolan, LLC, recently represented an individual charged not only with alleged motor vehicle violations including DWI, reckless driving, and careless driving, but also with the criminal (indictable) charge of leaving the scene of an accident resulting in serious bodily injury. Knowingly leaving the scene of an accident resulting in serious bodily injury is a third degree offense in New Jersey, punishable by up to three to five years in State Prison. DWI carries a mandatory 7 month to 1 year loss of driving privileges and up to 30 days in jail for a first offense.

But there was a fatal defect in the State's proofs. Although the State indicated it had witnesses who initially told the police that our client was the operator of the vehicle in question, we presented the prosecutor's office with statements of far more credible witnesses attesting to the fact that our client was not the driver of the car, and that indeed someone else was the operator. Our diligent investigative work paid off, and the prosecutor had no choice but to dismiss the indictment for knowingly leaving the scene of an accident resulting in serious bodily injury, based upon his inability to prove, beyond a reasonable doubt, that our client was, in fact, the operator of the car.

Although the remaining motor vehicle violations (DWI, reckless driving, etc.,) were remanded back to municipal court for disposition, we were able to convince the municipal prosecutor that the inability to prove operation applied to all the charges, not just the criminal charge of knowingly leaving the scene of an accident resulting in serious bodily injury. To the prosecutor's credit, he agreed that the lack of proof of operation was applicable to all the matters charged, and as a result moved to dismiss all remaining motor vehicle citations, including DWI and reckless driving. Stated differently, our client was not convicted of any of the charges filed against him.

The moral of the story is that proof of operation is key to the prosecution of any alleged moving violation, whether it is handled in Municipal Court as a traffic offense or Superior Court as a more serious, indictable matter.

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Brick, NJ 08723

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